Two deaths, wildly different penalties

— To see the federal government's inconsistent oversight of nursing homes, one needs only to look at what happened after two residents died — one in Texas, one in South Carolina.

At a nursing home in the East Texas town of Hughes Springs earlier this year, a resident approached the nurses' station gagging on a cookie. Attempts to clear his airway failed, and he died. Government inspectors determined that staff at the home were not trained for emergencies and did not immediately call 911.

Months earlier, in North Augusta, S.C., a resident pulled out her breathing tube and died. Inspectors faulted the home for failing to take appropriate steps to keep the resident from harming herself, even though she had pulled out the tube multiple times in the two months before she died.

In each state, inspectors working on behalf of the federal Centers for Medicare and Medicaid Services cited the homes for their failure to operate "in an acceptable way that maintains the well-being of each resident." Both homes posed an "immediate jeopardy" to residents' health and safety, inspectors determined.

But the consequences were starkly different.

In the Texas case, at the recommendation of state officials, Medicare imposed a fine against The Springs nursing home of $9,500. In the other, acting at the suggestion of South Carolina officials, it required Unihealth Post-Acute Care-North Augusta to pay a fine of $305,370.

These disparities aren't unusual, it turns out. A ProPublica analysis of Medicare data supports what auditors and researchers have maintained for years: Homes in some states pay a steep price for misconduct while those in neighboring states don't.

The average federal fine paid by a South Carolina nursing home in the past three years was $40,507. The average federal fine in Texas: $6,933.

The Centers for Medicare and Medicaid Services pays states to inspect nursing homes on its behalf. It gives states guidelines on when and how to impose penalties, and states recommend actions to the center's regional offices.

Those offices must approve sanctions before they are imposed, but the states' recommendations are almost always accepted. The federal government and states share the fine money.

Despite its authority, some experts say, the federal government has not done enough to standardize punishments.

"The enforcement system is broken," said Charlene Harrington, a nursing home expert and emeritus professor of nursing at the University of California at San Francisco. "If you don't go after these really bad violations and try to force these nursing homes to improve quality, they're going to continue to cause harm and jeopardy."

Federal officials acknowledged inconsistencies identified by ProPublica and said they are working to reduce them. Years ago, Medicare came up with guidelines to advise states and its own regional offices on when and how much to fine homes.

But the guidelines give them wide latitude. States can choose penalties either by incident, capped at $10,000, or on a per-day basis, which can quickly add up to a much higher number.

Beginning next year, Medicare will test a new program that provides more specific guidance. "Our new tool reduces that latitude by a fair degree," said Alice Bonner, director of the division of nursing homes.

Bonner said some flexibility is warranted because not every situation is the same. Factors affecting the size of a fine could include a home's past record of deficiencies, the speed with which it corrects problems and whether too large a penalty could force a facility to close, a hardship on residents, she said.

Tim Thornton, administrator at The Springs in Texas, said his nursing home has retrained staff since the resident choked on a cookie and died.

"With this specific case, the nurse on duty showed a lack of leadership. ... There was kind of a breakdown and maybe a little panic in the situation, and the nurse took it all upon herself and didn't ask for assistance from the others," Thornton said.

To demonstrate variation in enforcement, ProPublica mapped states based on their average fine, the number of serious deficiencies per home and how often they penalized homes by suspending payments for new admissions — another form of sanction that is less common than fines.

Officials in several states — those with high fines and low ones — said they had not compared themselves with other states and were unaware where they stood. The officials said that if Medicare wanted to raise or lower their recommended penalties, it has the authority to do so.

Texas has the second-highest number of nursing homes in the nation, behind California. While it had the most serious deficiencies of any state and imposed more payment suspensions, its average fine placed it near the middle.

Cecilia Cavuto, a spokeswoman for Texas' Department of Aging and Disability Services, defended the state's approach.

Texas chooses its actions based on "the nature of the deficiencies identified, prior success or failure of previous remedies, and staff's professional judgment regarding what remedy might best encourage a facility to come back into compliance with Medicare/Medicaid requirements," she wrote.

A South Carolina spokesman said the state follows federal guidelines in issuing fines and "there has been no change in the philosophy for enforcement."

Michigan ranks 11th for number of nursing homes in the state, with 426 facilities. Yet, over the past three years, Michigan homes paid more fines than any other state, nearly $10 million, and regulators meted out 175 payment suspensions, second only to Texas.

Officials at the Health Care Association of Michigan, a nursing home trade group, said the figures show that Michigan regulators have been unreasonably harsh.

"We just don't have any indication that we're performing worse than other states" in terms of the number of problems cited by inspectors, said David LaLumia, the association's president and CEO. "The latitude that states have to impose civil monetary penalties is very subjective."

Kimberly Gaedeke, assistant deputy director for Michigan's Department of Licensing and Regulatory Affairs, defended the state's use of penalties. She said the state has seen an increase in the number of serious deficiencies. As in other states, she noted, the final decision ultimately rests with Medicare officials.

Brian Lee, executive director of Families for Better Care, an advocacy group in Florida, said residents and their families should care about how well the government oversees the quality of care in nursing homes.

"This is affecting all of us. It's affecting our families," Lee said. "We're relying upon the regulators to ensure safety and quality care for our parents and grandparents."

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